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Reflections on Judicial Review of EU Sanctions Following the Crisis in Ukraine by the Court of Justice of the European Union Celia Challet

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Reflections on Judicial Review of EU Sanctions Following the Crisis in Ukraine by the Court of Justice of the European Union Celia Challet Reflections on Judicial Review of EU Sanctions Following the Crisis in Ukraine by the Court of Justice of the European Union Celia Challet DEPARTMENT OF EUROPEAN LEGAL STUDIES Research Paper in Law 04 / 2020 European Legal Studies Etudes Juridiques Européennes RESEARCH PAPERS IN LAW 4/2020 Celia Challet Reflections on Judicial Review of EU Sanctions Following the Crisis in Ukraine by the Court of Justice of the European Union © Celia Challet, 2020 European Legal Studies/Etudes Juridiques Européennes Dijver 11 | BE-8000 Brugge, Belgium | Tel. +32 (0)50 47 72 61 www.coleurope.eu 1 Reflections on the Judicial Review of EU Sanctions Following the Crisis in Ukraine by the Court of Justice of the European Union Celia Challet* Introduction Over the last decades, Common Foreign and Security Policy sanctions have become a major aspect of the EU’s foreign policy. They have also led to a massive amount of litigation before the CJEU. The case of EU sanctions adopted in the aftermath of the crisis in Ukraine is symptomatic of that. As a response to what is considered by the EU as an illegal annexation of Crimea and a deliberate destabilisation of Ukraine by Russia, the former has adopted a series of economic sanctions against the latter. In particular, the EU has adopted restrictive measures towards persons and entities considered as supporting Russia’s actions of destabilisation and threatening of Ukraine’s integrity, sovereignty and independence. The EU has also targeted certain persons and entities with regard to the situation in Ukraine. The purpose was to consolidate and support democracy and the rule of law in Ukraine, and to maintain its territorial integrity. Special emphasis was put on imposing sanctions on persons that were subject to criminal proceedings in Ukraine in connection with misappropriations of public funds. As from their adoption, these EU sanctions have been perceived as rather controversial. Since no measures were taken at the UN level due to the presence of Russia in the Security Council and a lack of consensus between the UN Member States, the EU adopted sanctions autonomously. Due to the features of these restrictive measures, their mere adoption and implementation has been called into question. For instance, the fact that the EU targeted individuals under criminal investigation in their country for the misappropriation of States funds, usually upon the request of the Ukrainian judiciary, bore a risk of restrictive measures being used to target political opponents.1 The most critical authors consider that the legality of these sanctions is “disputable”,2 or even that they are unjustified.3 The first waves of sanctions against Russia were adopted after the referendum on Crimea’s independence in 2014.4 Most of them have been renewed ever since.5 The EU targeted persons close to the Russian power, among which a major shareholder of a company involved in the construction of a bridge connecting Russia to Crimea,6 and a * Academic Assistant, European Legal Studies Department, College of Europe; PhD candidate, Ghent University. 1 House of Lords, The Legality of EU sanctions, European Union Committee 11th Report of Session 2016– 17 HL, Paper 102, 2 February 2017, paragraph 43. 2 W. CZAPLINSKI, S. DEBSKI, R. TARNOGORSKI, K. WIERCZYNSKA, The Case of Crimea's Annexation Under International Law, SCHOLAR Publishing House, Warsaw, 2017, p.272. 3 A. ALÍ, “The Challenges of a Sanctions Machine: Some Reflections on the Legal Issues of EU Restrictive Measures in the Field of Common Foreign Security Policy”, in L. ANTONIOLLI, L. BONATTI, C. RUZZA (eds.), Highs and Lows of European integration – Sixty Years after the Treaty of Rome, Springer, Switzerland, 2019, p.53. 4 See Council Decision 2014/145/CFSP and Council Regulation 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, OJ. L/78. 5 See, for instance, Council Decision (CFSP) 2020/907 of 29 June 2020 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ. L/207. 6 General Court, 30 November 2016, Rotenberg v. Council, T-720/14, ECLI:EU:T:2016:689. 2 journalist and head of a Russian State news agency which, according to the EU, developed a government propaganda supporting the Russian operations in Ukraine.7 They were mostly the subject of a freeze of assets. Following the downing of the Malaysia Airlines Flight 17 (MH17/MAS17), the EU targeted Russian undertakings operating in crucial areas, such as the defense sector (for instance, Almaz-Antey8), the oil and gas sector (e.g. Gazprom9 and Rosneft10) and the banking and financial sector, with Russian- owned banks such as Sberbank of Russia,11 VTB Bank,12 and the Bank for Development and Foreign Economic Affairs13 being targeted. Most of them were the subject of asset freezes and restriction of access to capital markets and defense, dual-use goods or sensitive technologies.14 As regards the situation within Ukraine, the EU targeted an important number of persons that were subject to criminal proceedings in Ukraine in connection with misappropriations of public funds. In order to support Ukraine and its judiciary in their investigation and proceedings, the EU provided for the freezing of the funds and assets of the persons concerned. The majority of these measures targeted Ukrainian leaders with strong connections to Russia: former President Viktor Yanukovych,15 former Prime ministers Mykola Azarov16 and Sergej Arbuzov,17 former Energy Ministry Edward Stavytskyi,18 former members of the Yanukovych administration such as Andriy Portnov19 as well as Andrii Klyuyev.20 Family members of some leaders were also the subject of restrictive measures (e.g. Oleksandr Yanukovych21 and Oleksii Azarov22). Most of them were listed in the first EU acts providing for restrictive measures against Ukraine,23 and some of these restrictive measures have been renewed ever since.24 The EU also targeted 7 General Court, 15 June 2017, Kiselev v. Council, T-262/15, ECLI:EU:T:2017:392. 8 General Court, 25 January 2017, Almaz-Antey v. Council, T-255/15, ECLI:EU:T:2017:25; General Court, 13 September 2018, Almaz-Antey v. Council, T-515/15, ECLI:EU:T:2018:545. 9 See, in particular, General Court, 13 September 2018, Gazprom Neft PAO v. Council, T-735/14 and T- 799/14, ECLI:EU:T:2018:548. 10 Court of Justice, Grand Chamber, 28 March 2017, PJSC Rosneft Oil Company v. Her Majesty's Treasury, C-72/15, ECLI:EU:C:2017:236 ; General Court, 13 September 2018, PAO Rosneft Oil Company and others v. Council, T-715/14, ECLI:EU:T:2018:544. 11 General Court, 13 September 2018, Sberbank of Russia OAO v. Council, T-732/14, ECLI:EU:T:2018:541. 12 General Court, 13 September 2018, VTB Bank PAO v. Council, T-734/14, ECLI:EU:T:2018:542 ; Court of Justice, 25 June 2020, VTB Bank PAO v. Council, C-729/18 P, ECLI:EU:C:2020:499. 13 General Court, 13 September 2018, Vnesheconombank v. Council, T-737/14, ECLI:EU:T:2018:543 ; Court of Justice, 25 June 2020, Vnesheconombank v. Council, C-731/18 P, ECLI:EU:C:2020:500 14 Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ. L/299. 15 See, in particular, General Court, 15 September 2016, Viktor Yanukovych v. Council, T-346/14, ECLI:EU:T:2016:497 and Court of Justice, 19 October 2017, Viktor Yanukovych v. Council, C-598/16 P, ECLI:EU:C:2017:786. 16 See, in particular, General Court, 28 January 2016, Mykola Azarov v. Council, T-331/14, ECLI:EU:T:2016:49, and General Court, 7 July 2017, Mykola Azarov v. Council, T-215/15, ECLI:EU:T:2017:479. 17 See, in particular, General Court, 28 January 2016, Arbuzov v. Council, T-434/14, ECLI:EU:T:2016:46, and General Court, 7 July 2017, Arbuzov v. Council, T-221/15, ECLI:EU:T:2017:478. 18 See, in particular, General Court, 30 January 2019, Stavytskyi v. Council, T-290/17, ECLI:EU:T:2019:37. 19 See, in particular, General Court, 26 October 2015, Portnov v. Council, T-290/14, ECLI:EU:T:2015:806. 20 See, in particular, General Court, 15 September 2016, Klyuyev v. Council, T-340/15, ECLI:EU:T:2016:496 ; General Court, 11 July 2019, Klyuyev v. Council, T-305/18, ECLI:EU:T:2019:506 21 See, in particular, General Court, 15 September 2016, Oleksandr Yanukovych v. Council, T-348/14, ECLI:EU:T:2016:508, and Court of Justice, 19 October 2017, Oleksandr Yanukovych v. Council, C-599/16 P, ECLI:EU:C:2017:785. 22 See, in particular, General Court, 28 January 2016, Oleksii Azarov. Council, T-332/14, ECLI:EU:T:2016:48. 23 Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [6.03.2014], OJ. L/66 ; Council Regulation (EU) 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [6.03.2014], OJ. L/66. 24 See, for instance, Council Decision (CFSP) 2020/399 of 13 March 2020 amending Decision 2014/145/CFSP, OJ. L/78. 3 Ukrainian undertakings considered as being controlled by Russian firms close to the Russian central power. This was the case of Prominvestbank,25 a Ukrainian bank in which the majority of the capital was held by a Russian bank.
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